WVC 31 E- 12 -1202
§31E-12-1202. Member approval of certain dispositions.
(a) If the corporation has members entitled to vote on the
transaction, a sale, lease, exchange, or other disposition of
assets, other than a disposition described in section one thousand
two hundred one of this article, requires approval of the
corporation's members if the disposition would leave the
corporation without a significant continuing business activity. If
a corporation retains an activity that represented at least
twenty-five percent of total assets at the end of the most recently
completed fiscal year, and twenty-five percent of either income
from continuing operations before taxes or revenues from continuing
operations for that fiscal year, in each case of the corporation
and its subsidiaries on a consolidated basis, the corporation will
conclusively be deemed to have retained a significant continuing
activity.

(b) A disposition that requires approval of the members under
subsection (a) of this section must be initiated by a resolution by
the board of directors authorizing the disposition. After adoption
of a resolution, the board of directors shall submit the proposed
disposition to the members for their approval. The board of
directors shall also transmit to the members a recommendation that
the members approve the proposed disposition, unless the board of
directors makes a determination that because of conflicts of
interest or other special circumstances it should not make a
recommendation that the members approve the disposition, in which case the board of directors shall transmit to the members the basis
for that determination.

(c) The board of directors may condition its submission of a
disposition to the members under subsection (b) of this section on
any basis.

(d) If a disposition is required to be approved by the members
under subsection (a) of this section, and if the approval is to be
given at a meeting, the corporation shall notify each member
entitled to vote of the meeting of members at which the disposition
is to be submitted for approval. The notice must state that the
purpose, or one of the purposes, of the meeting is to consider the
disposition and is to contain a description of the disposition,
including the terms and conditions of the disposition and the
consideration to be received by the corporation.

(e) Unless this chapter or the articles of incorporation or
the board of directors acting pursuant to subsection (c) of this
section requires a greater vote, or a greater number of votes to be
present, the approval of a disposition by the members requires the
approval of the members at a meeting at which a quorum consisting
of at least a majority of the votes entitled to be cast on the
disposition exists.

(f) After a disposition has been approved by the members under
subsection (b) of this section, and at any time before the
disposition has been consummated, it may be abandoned by the
corporation without action by the members, subject to any contractual rights of other parties to the disposition.

(g) A disposition of assets in the course of dissolution under
article thirteen of this chapter is not governed by this section.

(h) The assets of a direct or indirect consolidated subsidiary
are to be deemed the assets of the parent corporation for the
purposes of this section.

Note: WV Code updated with legislation passed through the 2016 Regular Session
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